Essays in Refusal: Pre-Theoretical Commitments in Postmodern Anthropology and Critical Race Theory

By Jinks, Derek P. | The Yale Law Journal, November 1997 | Go to article overview

Essays in Refusal: Pre-Theoretical Commitments in Postmodern Anthropology and Critical Race Theory


Jinks, Derek P., The Yale Law Journal


The necessity of reform mustn't be allowed to become a form of blackmail

serving to limit, reduce or halt the exercise of criticism. Under no

circumstances should one pay attention to those who tell one: "Don't

criticize, since you're not capable of carrying out a reform." That's

ministerial cabinet talk. Critique doesn't have to be the premise of a

deduction which concludes: this then is what needs to be done. It should

be an instrument for those who fight, those who resist and refuse what is.

Its use should be in processes of conflict and confrontation, essays in

refusal.

--Michel Foucault(1)

I. INTRODUCTION: THE SOCIOLOGY OF CRITIQUE

Michel Foucault's compelling and poetic methodological manifesto describes the nature of "critique" and, thereby, the proper role of the critic. For Foucault, "critique" was more than a means to an end; criticism was itself an act of resistance and refusal.(2) Toward this end, Foucault sought to decouple criticism from positive programs for social and political change.(3) Criticism is, according to this view, a negative operation--"essays in refusal"--resisting and rejecting "what is" without regard for "what needs to be done."(4) For this reason, Foucault's views have occasionally been labeled Such "rejectionist"(5) claims, in turn, exemplify the most feared aspects of a new challenge to traditional legal thought: postmodernism.(6)

In this Note, I challenge Foucauldian "rejectionism" by suggesting, through an example, that criticism cannot and should not assume an irreducibly oppositional stance. Critique is indeed "a challenge directed to what is";(7) this challenge, however, should not be reduced to an "insurrectionary gesture."(8) I forward two broad claims. First, criticism itself should be understood as a social practice. Such an understanding demonstrates that certain characterizations of postmodernism as an antifoundational, nihilistic retreat from struggles for justice have no referent in the social world.(9) Second, this sociological understanding of criticism provides scholars with useful conceptual resources with which to guide the productive incorporation of postmodern insights into legal scholarship.

Debates about the propriety of postmodernism's anti foundational thinking have rapidly assumed a central role in many areas of legal inquiry.(10) Many legal scholars lament the arguably paralyzing, solipsistic mood of postmodernism,(11) while others celebrate postmodernism's putative emancipatory commitment to multiplicity, subjectivity, and indeterminacy.(12) Without engaging these debates directly, this Note analyzes the impact of the "postmodern turn" on the Critical Race Theory (CRT) movement.(13)

CRT is often characterized--usually as a precursor to criticism--as postmodern.(14) In fact, CRT seemingly strikes an ambivalent pose on the postmodern question;(15) some CRT scholars applaud the incorporation of postmodernism into "outsider jurisprudence,"(16) while others warn of the dangers of narcissism(17) and political paralysis.(18) This surface ambivalence, however, masks a deeper consensus: While CRT scholars reach different conclusions on the usefulness of postmodernism, they apply the same pre-theoretical Criteria(19) in the course of generating their respective conclusions. That is, CRT does not (and should not) embrace Foucault's understanding of the critic as "rejectionist."(20) This Note elaborates on this point by offering an examination of the ways in which another discipline--anthropology--selectively appropriates insights from postmodernism. Such an exercise demonstrates that the practice of CRT, properly understood, is not an antifoundational. enterprise.

Although my understanding of the law's conceptual and normative commitments is shaped in no small measure by the insights of CRT, this Note is properly understood as a commentary on CRT rather than an instance of CRT. …

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